LEGISLATIVE REVIEW COMMITTEE

MEMBER UPDATE

July, 2003

Among the several functions of the Bar’s Legislative Review Committee is to keep our members informed of proposed, pending, and adopted legislation likely to have an impact upon the practice of law.

The following bills are of particular interest and concern to attorneys:

(1) An act to amend the civil practice law and rules in relation to conduct of depositions

(A02912) Sponsor: Klein

Status: Passed Assembly, referred to Codes

PURPOSE

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of his Advisory Committee on Civil Practice and Procedure.

SUMMARY

This measure would add a new CPLR 3115(e) to establish reasonable and clear limits on the practice of directing a witness not to answer a question. Subdivision (e) would principally be directed at the attorney representing the deponent, but it also would apply to other counsel. It would restrict when an attorney could direct a witness not to answer to instances in which:

(1) a privilege or right of confidentiality would be lost were the testimony to be required;

(2) it is necessary to enforce a court order; or

(3) a question is not merely improper but is plainly so and would cause substantial prejudice to any person if an answer were required.

To discourage abuse, the objecting attorney would be required to state the basis for the objection and the refusal to answer. At the same time, however, the measure would make clear that, even when an objection is well-founded, it cannot be an excuse to end the questioning or to cause delay insofar as questions not in controversy are concerned. An attorney may direct a witness to refuse to answer and may seek a protective order with regard to the offending question, but the parties must continue the session on other matters unless the attorney for the examining party agrees to adjourn at that point. This should promote efficiency and fairness and limit delay and expense.

The measure also would amend CPLR 3115 to prohibit an attorney from interrupting a deposition to communicate with the deponent except under narrow circumstances. Interruption after

a question is posed but before it is answered obviously creates a risk that the testimony will be influenced by attorney coaching. This risk is present as well if the interruption occurs after the answer is given, at which time the witness can be induced to see the light and to correct the answer. Accordingly, under this proposal, when an attorney interrupts the questioning, he or she must state the basis for the interruption.

The proposal would not, however, forbid communication with a witness during recesses; nor would it deprive defending counsel of an opportunity to correct mistakes. The attorney representing the party being examined at a deposition would remain able to seek a protective order in the event that counsel conducting the deposition were in some fashion to exceed the bounds of proper conduct.

Finally, the measure would make several technical changes to rules 3113 and 3115. First, it would move provisions governing the making of objections from rule 3113(b) and place them (slightly modified) in rule 3115(a) so that all provisions on objections could be found in one place. Second, it would clarify in rule 3115(c) that any party attending a deposition may examine the deponent. Of course, no set of rules can address precisely every conceivable circumstance. The Advisory Committee believes, however, that the rules set forth in this measure are fair and reasonable, provide bright lines to guide counsel and will discourage abuses in the conduct of depositions that too often mar the litigation process in New York.

JUSTIFICATION

The Advisory Committee has recommended that certain changes be made to CPLR 3113 and 3115 to ensure that depositions in a civil case are conducted as efficiently, civilly, professionally and inexpensively as possible. Long experience has shown that existing rules governing depositions permit counsel to engage in actions that obstruct the search for truth and make the process of discovery more time-consuming, less efficient and more expensive than it needs to be.

For example, frequent use is made of so-called speaking objections -- objections accompanied by, or made in the form of, speeches exceeding what is necessary to preserve an objection to form. At a minimum, these speaking objections interfere with the smooth flow of the deposition and cause delay. At times, they have the effect of signaling to the witness how a question ought to be answered and, indeed, that often is their purpose.

Further, some attorneys believe it is okay to direct a witness not to answer any question they find objectionable. And some attorneys claim a right to consult with the client-deponent during questioning so as effectively to coach the deponent in responding to the questioning. It also is not unusual for attorneys, for tactical reasons or because of over zealousness or rudeness, deliberately to interrupt and burden depositions with comments about the adversary`s case.

These practices cause serious damage. They not only produce injustices in individual cases where they are employed, they also undermine the foundations of the discovery process and impair the public image of the legal profession. CPLR 3115 currently provides that most objections to deposition questioning are preserved for trial -- a salutary principle that facilitates an orderly, fair and efficient deposition. Our Advisory Committee urges that the rule go further, however, and that it provide that objections not required to be made, not be made during depositions. Accordingly, this measure would limit an attorney`s opportunity to interpose objections that are preserved for trial solely to make the taking of the deposition difficult or expensive for the inquiring attorney.

Similarly, it would require that, when objections are made, they be stated succinctly and not framed so as to suggest answers to the witness. Lastly, the measure would generally prohibit statements or comments that interfere with questioning. Also under the proposal, objections to a question`s form, at the option of the inquiring attorney, must be accompanied by a statement of the claimed defect or basis for a perceived error or irregularity. The obligation placed on the objecting counsel to justify his or her objection should create a disincentive for the misuse of objections and facilitate quick and inexpensive correction of minor problems. At the same time, requiring articulation of a defect only when requested by the questioner should minimize opportunities for abuse.

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(2) An act to amend the county law in relation to ethical standards for district attorneys

(A01543) Sponsor: Wright

Status: referred to governmental operations

PURPOSE

Amends County Law to add a new section 708 establishing ethical standards for districts attorneys and their offices; violation thereof shall constitute professional misconduct under the judiciary law.

SUMMARY

District Attorneys, Special District Attorney, Assistant District attorney and every attorney appointed to prosecute a criminal proceeding pursuant to this article, and every employee thereof shall be subject to the laws, rules and regulations regulating the conduct of attorneys and counselors at law within the Department of the Appellate Division of the Ssupreme Court within which such attorney prosecutes criminal proceedings.

No such attorney shall:

(1) in the absence of probable cause, seek an indictment of any person;

(2) fail to release any exculpatory evidence to an indicted defendant in a timely manner;

(3) intentionally mislead a court as to the guilt of any defendant;

(4) intentionally present evidence which he or she knows is false or inaccurate;

(5) intentionally alter evidence;

(6) attempt to influence or change the testimony of a witness;

(7) impede a defendant`s right to discovery or exculpatory evidence;

(8) offer or provide sexual contact with any person acting on such attorney`s behalf, to any potential witness;

(9) improperly release any information relating to a criminal investigation or prosecution;

(10) knowingly misrepresent statutory or case law;

(11) engage in conduct having the appearance of impropriety; or

(12) engage in conduct which the chief administrator of the court shall determine, in rules and regulations, to be prosecutorial misconduct.

Every violation of this section shall be deemed to be professional misconduct pursuant to the Judiciary Law and shall be referred to the appropriate Appellate Division of the Supreme Court pursuant to the Judiciary Law.

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(3) An act to amend section 9-u of the banking law in relation to attorney trust accounts

Prohibits a bank or trust company from charging a monthly service charge or requiring a minimum balance for required attorney trust or IOLA accounts that are non-interest bearing and where there are no more than 15 transactions per month.

This bill would provide that no bank or trust company regulated by the State of New York shall charge a service fee or require a minimum balance on an attorney trust account provided that such account is required by law and that no more than fifteen debit or credit transactions per month are made in connection with such account and further provided that such account is non-interest bearing. This bill would also define "attorney trust account" as a special bank or checking account required by a rule of court for the deposit of funds belonging to legal clients or other persons in the practice of law.

An attorney in possession of any asset or sum of money belonging to a client is a fiduciary and must not commingle client funds with his or her own funds or personal or business account. Furthermore, an attorney must maintain in a bank or trust company within the State of New York in his or her own name, or in the name of a firm of attorneys of which he or she is a member, a special account independent from his or her personal accounts. In many areas of the state, banks require minimum deposits or service fees for the maintenance of these accounts. Such requirements can be financially burdensome to the small practicing attorney who handles only a few cases which would require the collection and deposit of clients` funds. This bill would ameliorate this situation by providing that no bank or trust company regulated by New York State shall charge a service fee or require a minimum balance on an attorney trust account provided that such account is required by law and that no more than fifteen debit or credit transactions per month are made in connection with such account.

(4) An Act to amend the judiciary law in relation to the prohibition against attorneys sharing compensation

Increases from a misdemeanor to a felony, the second or subsequent finding within 10 years of a violation of the prohibition against fee sharing by attorneys.

(5) An act to amend the penal law and the vehicle and traffic law in relation to penalties for driving in violation of provisions relating to the use of cellular phones

Provides that drivers who cause accidents which result in serious physical injury or death while talking on a cellular phone shall be subject to identical criminal penalties as those persons who cause accidents which result in serious physical injury or death while driving under the influence of drugs or alcohol; imposes a penalty of two points against a person`s license when convicted of a violation of driving while using a cellular phone.

The purpose of this bill is to hold cell-phone drivers who cause accidents accountable for their actions. Motorists who are deemed responsible for accidents which result in serious physical injury or death to an individual, because of the their cell phone use, will be subject to criminal penalties.

Section 120.03 of the penal law (Vehicular assault in the second degree) is amended by adding a new subdivision 24-b of section 375 of the Vehicle and Traffic Law, which makes it illegal to use a hand-held mobile phone while operating a motor vehicle. Any person found guilty of vehicle assault in the second degree would be subject to criminal penalties associated with a class E felony, punishable by a determined prison sentence.

Section 120.4 of the penal law (Vehicular assault in the first degree) is amended by adding a new subdivision 24-b of section 375 of the Vehicle and Traffic Law, which makes it illegal to use a hand-held mobile phone while operating a motor vehicle. Any person found guilty of vehicular assault in the first degree would be subject to criminal penalties associated with a class D felony, punishable by a determined prison sentence.

Section 125.12 of the penal law (Vehicular manslaughter in the second degree) is amended by adding a new subdivision 24-b of section 375 of the Vehicle and Traffic Law, which makes it illegal to use a hand-held mobile phone while operating a motor vehicle. Any person found guilty of vehicular manslaughter in the second degree would be subject to criminal penalties associated with a class D felony, punishable by a determined prison sentence.

Section 125.13 of the penal law (Vehicular manslaughter in the first degree) is amended by adding a new subdivision 24-b of section 375 of the Vehicle and Traffic Law, which makes it illegal to use a hand-held mobile phone while operating a motor vehicle. Any person found guilty of vehicular manslaughter in the first degree would be subject to criminal penalties associated with a class C felony, punishable by a determined prison sentence.

According to the information provided by CTIA (Cellular Telecommunications Industry Association), currently there are more than 107 million people who subscribe to wireless services in the United States. More than 85% of these subscribers use their phones while driving. The use of a mobile phone while driving is a serious threat to the health and safety of the general public. Every day there are cellphone-related accidents where individuals are seriously injured or killed because of the negligence of a cellphone driver. A 1997 study conducted by the New England Journal of Medicine concluded that the distraction caused by a motorist using a telephone quadrupled the risk of a collision, a rate equal to impairment caused by legal intoxication.

Although the public has been made aware of the dangers of driving and talking through the media and published reports, the number of serious cellphone-related accidents and deaths continue to rise. It is necessary, therefore, for the state to hold individuals accountable for their actions. Imposing stiffer penalties for those responsible for cell- phone-related accidents which result in serious physical injury or death will force people to take notice. Stricter laws have resulted in reducing DWI fatalities and will have the same impact on cellphone-related fatalities.

(6) An act to amend the general business law in relation to the sale of cellular phones and pagers to minors

Adds section 399-bb to the General Business Law to prohibit the sale of cellular phones and pagers to minors less than eighteen years of age without the consent of their parent or legal guardian; establishes fines and suspension of operator`s license for failure to comply.

To curb schoolroom distractions, drug transactions involving minors, and gang activity facilitated by the use of cellular phones and pagers by minors

The popularity and use of cellular telephones and pagers has increased dramatically in recent years. These devices have proven extremely useful in many situations, and at times may even be a life-saving device. However, the widespread availability and affordable price of these devices has allowed children of all ages to purchase cellular phones and pagers without parental consent. Consequently, the use of these devices has caused distractions in school classrooms, in addition to contributing to violence in schools. Both school and police officials have verified that cellular phones and pagers have been used by school-age children for the purpose of selling and purchasing of drugs, and for the coordination of gang activity.

The passage of this law would help curb gang activity and the sale of drugs on school grounds, as well as cut down on classroom distractions. In addition, adult use of cellular phones while driving motor vehicles is currently a major cause of traffic accidents. Because young drivers are inexperienced, their use of these devices while driving poses an even greater danger to themselves and other drivers. Therefore, this legislation could also help to curb traffic accidents involving minors.

Matthew E. Pachman and J. David Eldridge are partners in the firm of Pachman, Pachman & Eldridge, of Commack, NY. Together they co-chair the Bar’s Legislative Review Committee.